R v Basacar[2008] QCA 285

SUPREME COURT OF QUEENSLAND

1. FRASER JA: I agree with the order proposed by Cullinane J and with his Honour’s reasons for that order.

2. CULLINANE J: The applicant has filed an application seeking an extension of time within which to appeal against his conviction on two counts of rape and a count of entering premises with intent, at the District Court at Brisbane on 1 March 2006.

3. This application was filed on 20 June 2008.

4. The applicant in fact had instituted within time, an appeal against conviction and an application for leave to appeal against sentence.

5. The appeal against conviction was abandoned. The notice of abandonment bears the date 30 June 2006 and the applicant accepts that his signature appears on it. He was at this time legally represented.

6. The application for leave to appeal against sentence proceeded and was refused. The applicant was represented by senior counsel on the hearing of that application.

7. Rule 70 of the Criminal Practice Rules 1999 as amended provides as follows:

“(1)An appellant, at any time after starting an appeal, may abandon it by giving to the registrar a notice of abandonment of appeal.

(2)The appeal is taken to be dismissed by the court when the notice is given to the registrar.

(3)However, if the court considers it necessary in the interests of justice, the court may set aside the abandonment and reinstate the appeal."

8. The predecessor to rule 70 (order 1 X r 22 of the Criminal Practice Rules of 1980) included language to the same effect as rule 70(2). This was taken to preclude any further appeal subsequent to an abandonment. See R v Tabe [1983] 2 Qd R 60 per Campbell CJ at page 61, R v Green [1989] 1 Qd R 408 at 409 per Macrossan J (as he then was).  See also R v Griffin [1969] 2 NSWR 497 cited by Campbell CJ in R v Tabe (supra).

9. The courts permitted the withdrawal of a notice of abandonment only in very limited circumstances which are not relevant here. With the introduction of rule 70 the court has a broader power to set aside an abandonment of an appeal and to reinstate the appeal.

10. Although the applicant did not make such an application in those terms before us, it seems to me consistent with the above authorities necessary for him if he is to challenge the convictions to obtain such an order and the matter falls to be considered by reference to the considerations relevant to such an application.

11. The considerations relevant to such an application are more extensive than those relevant to an application for an extension of time within which to appeal although considerations relevant to the latter will also be relevant to the former.

12. Rule 70 was considered by the Court of Appeal in R v Marriner [2007] 1 Qd R 179.

13. As McPherson JA pointed out at pages 183 and 184 consideration of the circumstances in which the appeal was abandoned in the first place is necessary. The explanation for any delay between the abandonment and the application for leave to set it aside will be relevant as will a consideration of the prospects of success. Ultimately of course, the question is whether the setting aside of the abandonment and the reinstatement of the appeal are necessary “in the interests of justice”.

14. The applicant before us, whilst acknowledging that his signature appeared on the notice of appeal claimed to have little or no knowledge of the circumstances in which the appeal was abandoned.

15. In an affidavit filed by him, the applicant claimed to have no recollection of the earlier notice of appeal against conviction and the application for leave to appeal against sentence, but before us he acknowledged that he had been aware that an appeal had been lodged but did not know what had happened in relation to it. He says that when he became aware of these matters he contacted Legal Aid Queensland and received confirmation that a notice of appeal had been lodged.

16. In his submissions to this court he gave a somewhat rambling and confused account of the history of the matter generally but it is fair to say I think that he did not advance any explanation as to why the appeal was abandoned and says that he was not aware that this step had been taken.

17. According to his affidavit he says that following his sentence he was for some time in what he describes as a mainstream gaol being moved regularly from one unit to another. He says that he was in constant fear of his life and was the subject of regular threats.

18. For some time, according to the account he gives, he did not have any understanding of his rights nor was he in any frame of mind to pursue them. He was, he said, in fear of his life and unsure if he was going to get out of prison alive.

19. He describes himself as being in a state of depression following his conviction for some time as well as being in fear of his life. About 12 months ago he was moved to the Wolston Correctional Centre which he describes as being for “protection prisoners only”. He says that he has been safer there and that his depression is better.

20. In summary he said that his condition whilst in gaol at least until his transfer to Wolston Correctional Centre disabled him from functioning normally and that it was because of this condition that he did not take any earlier steps and does not have any clear recall of the earlier appeal or its abandonment.

21. There is no medical evidence to support his claim as to his mental condition.

22. There is, as will be apparent from what I have said, no explanation as to why the earlier appeal was abandoned. One inference since he was legally represented at the time is that a judgment was formed that he did not have any realistic prospects of success. Whether this is so or not the applicant has failed to provide any explanation for the abandonment of the appeal.

23. The delays in the filing of the application before this court have been very lengthy and in my view no adequate explanation has been advanced for them. Even on the applicant’s own account he has for some twelve months been coping better than he had previously but did not file an application to extend time until 20 June 2008.

24. The grounds upon which he would wish to challenge the convictions are that they were unsafe and unsatisfactory.

25. The complainant and her boyfriend were staying in a motel at Airlie Beach.  It would seem that earlier on the relevant evening the applicant had seen the complainant and her boyfriend but there had not been any contact between them.  The complainant and her boyfriend retired to their room where he occupied an upper bunk and she occupied a lower bunk.  The complainant had been sleeping naked but partly in a sleeping bag, and went to sleep facing a wall.  She awoke to find a body pressing against her from behind.  She assumed it was her boyfriend.  It was in fact the applicant, who according to the complainant placed his right hand between her legs and rubbed her vagina, digitally penetrating her.  When the complainant attempted to roll towards the man, who she believed to be her boyfriend the applicant pushed her back so that she was facing the wall.  He then inserted his penis partially into her vagina.  When she became aware it was not her boyfriend she screamed and her boyfriend awoke and chased the applicant out of the unit.

26. The complainant was not certain whether she had locked the door to the unit.

27. The material before the court shows that in cross-examination the complainant was not challenged as to her evidence as to penetration. The applicant claimed to have a reasonable belief that the complainant was consenting to what he was doing.

28. The learned trial judge told the jury that the accused had not contested the complainant’s evidence in relation to digital and penile penetration.

29. The summing up of the learned trial judge is not the subject of any complaint. The jury was carefully taken through the evidence and given appropriate directions as to the elements of the two offences.

30. Before us the applicant tended to make assertions about what had occurred which were plainly contrary to the manner in which his defence at trial was conducted.

31. In my view it was clearly open to the jury to convict the applicant of the offences and it is impossible to regard him as having any realistic prospects of successfully challenging the applications.

32. Treating the matter as an application to set aside the abandonment of the appeal the application must be refused. A similar outcome would follow if the matter were considered as an application to extend the time within which to appeal.

33. The application is dismissed.

34. JONES J: I have read the reasons of Cullinane J and, for the reasons given by Cullinane J, I agree with the order proposed.